In May 2019, National Grid – the utility company that provides natural gas to approximately 1.8 million customers in Brooklyn, Queens, Staten Island and Long Island – announced a moratorium on the processing of applications for new gas service.  The moratorium was imposed following a May 15, 2019 Decision by the New York State Department of Environmental Conservation’s (DEC) denying a water-quality permit for a portion of a proposed 23-mile underwater gas supply pipeline, known as the Northeast Supply Enhancement (NESE) Project.  Since that time, National Grid has denied about 2,600 requests for gas service from new residential, commercial and industrial customers.

According to National Grid, the region’s demand for natural gas is expected to rise by 10 percent over the next decade and, without the NESE, its existing infrastructure simply does not have the ability to handle this increased demand.  The NESE seeks to expand the existing 10,000-mile Transco pipeline system that currently serves the northeastern and southeastern states.  The NESE would deliver an additional 400 million cubic feet a day of fracked natural gas from Pennsylvania, through New Jersey, and beneath Raritan Bay and Lower New York Bay, to an existing connection located three miles off the coast of Rockaway, Queens.  If completed, National Grid says the pipeline would increase the company’s capacity by 14 percent.  In July 2019, National Grid’s residential customers received an email stating that it would not be able to expand gas service unless the NESE pipeline is approved, and urged customers to sign a petition “to express support for this critical energy project” that would be sent to Governor Andrew Cuomo, the DEC, and federal, state and local elected officials.

Some opponents of the pipeline, including Governor Cuomo and New York City Mayor Bill de Blasio, argue that it would further the region’s reliance on fossil fuels and is incompatible with the state’s goals to shift to renewable energy in the coming years.  Other opponents claim that the pipeline will have significant adverse impacts on the environment.  In a May 15, 2019 Press Release announcing its decision to deny the permit application for the NESE, the DEC said that “construction of the proposed project would result in significant water quality impacts from the re-suspension of sediments and other contaminants, including mercury and copper” and “would cause impacts to habitats due to the disturbance of shellfish beds and other benthic (bay-bottom) resources.”  Many have been critical of National Grid’s actions, claiming that the moratorium is nothing more than a political ploy to get the pipeline approved.

As the standoff between the State and National Grid continues, residents and businesses, and even the region’s economy, are suffering hardship from the inability to connect to natural gas service.  According to Vision Long Island, a nonprofit smart growth advocacy group, the moratorium is having an economic impact on downtowns and small businesses that has gone mostly unreported.  The LI Herald reported back in June that the Mayor of the Village of Lynbrook has said that there are multiple businesses in the village that are ready to open, but can’t do so without gas service, causing “a tremendous hurt to the village.”

Large-scale developers of residential, mixed-use and civic projects are also experiencing significant financial hardship from the moratorium.  This is particularly true where projects were under construction prior to the moratorium and reasonably expected to connect to gas service.  These projects either sit unoccupied waiting for the moratorium to end, or have incurred the additional expense of converting their heating, cooking and back-up generator systems, to alternative energy sources, such as electric, oil and propane, which are all more costly and produce greater greenhouse emissions.  For example, the recently completed 30-unit Blake Hendrix affordable housing project in Brooklyn was denied a gas hook up in June, and now the project sits vacant causing the developer to lose about $30,000 per month.  In Commack, the developer of a nearly completed 64-unit assisted living facility that previously received a gas availability letter from National Grid, but did not submit a complete connection application prior to the moratorium, was forced to make a last minute conversion to propane, rather than have its building sit unoccupied.  The developers of a new arena at Belmont Park have made similar contingency plans to have the project served by propane if a natural gas connection is unavailable.

While the moratorium remains in place, National Grid began restoring service to over 1,100 customers who previously disconnected from the system after Governor Cuomo threatened in October to impose millions of dollars in fines against the company.  It is not, however, taking actions to provide new service connections.  On November 12, 2019, Governor Cuomo issued a letter to National Grid giving notice of the State’s intent to revoke the utility company’s certificate to operate its downstate gas franchise.  The Governor also threatened National Grid with legal action if the gas provider doesn’t find a way to take on new customers.

As the months-long wrangling continues, residents and local businesses are stuck in limbo and will continue to endure significant financial hardship until the fate of the region’s gas supply is determined.  In light of the Governor’s recent actions, and National Grid’s commitment to restore service to its previous customers, those still affected by the moratorium are hopeful that this standoff will come to an end soon.

 

Several prior blog posts discussed standing requirements under the State Environmental Quality Review Act (SEQRA) and the timeliness of challenging a SEQRA determination. A decision from the Appellate Division, Third Department, Schulz v Town Board of the Town of Queensbury, issued on October 24, 2019, involved both of these elements and was a one-two punch that knocked out a challenge to a municipal decision. Here are the pertinent facts.

The Town of Queensbury Sanitary Sewer Project 

The Town of Queensbury began considering establishing a sanitary sewer district for a portion of the Town in 2013. The Town determined the project was an Unlisted Action under SEQRA and in January 2016, the Town Board adopted a resolution indicating it intended to serve as Lead Agency.  At the conclusion of its September 12, 2016 public hearing on the proposal, the Town Board completed its review under SEQRA and issued a negative declaration, finding that the proposed sewer district would not have any potential significant adverse environmental impacts. The Town then approved a resolution to establish the sanitary sewer district, subject to a permissible referendum. Notice of the adoption of the resolution was thereafter published and no petition for referendum was filed.

In December 2016, the Town submitted an application for approval of the district to the State Comptroller, which was granted on November 10, 2017. The Town then adopted the final order establishing the sanitary sewer district on November 20, 2017. In January 2018, the Town Board adopted a resolution authorizing the issuance of approximately $1.9 million in serial bonds and bond anticipation notes to pay for the cost of the project. On March 1, 2018, the Town closed on $325,000.00 of the authorized financing.  On July 2, 2018, the Town Board accepted a bid to construct the sanitary sewer project.

Mr. Schulz did not participate in the public hearing that preceded the SEQRA negative declaration and sewer resolution. Rather, at the October 2016 Town Board meeting, he read into the record and submitted a “Petition for the Redress of Grievances Regarding the Proposed [sewer district].” He submitted another “Petition for the Redress of Grievances” at the June 4, 2018 Town Board meeting. The Town did not respond to either of these documents.

On July 2, 2018, Mr. Schulz commenced an action against the Town Board and Town officials, seeking declaratory and injunctive relief and a temporary restraining order to stop the project. The Town cross-moved to dismiss the action, which cross-motion was granted by the trial court.  In the Trial Court Decision, issued September 19, 2018, the trial court determined that Mr. Schulz’s SEQRA claims were time-barred. The trial court also ruled that his constitutional claims failed to state a claim. Mr. Schulz’s motion to reargue and renew was subsequently denied by the trial court.

The Appellate Division Decision

On appeal to the Appellate Division, Third Department, the Court first evaluated the SEQRA issue and determined that Mr. Schulz lacked standing. The Court noted that Mr. Schulz failed to show how he would suffer direct harm and also failed to demonstrate how his claimed injury was different from an injury to the public at large. The Court pointed out that Mr. Schulz did not reside in the Town and that while part of his homestead may have straddled the Town boundary line, his property was 15 miles away from the sanitary sewer district.

The Court was equally blunt about the untimeliness of his SEQRA challenge. The Court noted that the negative declaration was issued in September 2016 and the final approval of the sewer district occurred in November 2017. His lawsuit was commenced almost eight months later, in July 2018. The Court ruled that Mr. Schulz could not skirt the four-month statute of limitations applicable to a SEQRA challenge by casting his claims in the form of declaratory or injunctive relief causes of action. Furthermore, his allegations that he was entitled to a longer period of time to sue because he claimed the Town Board knowingly lied in the SEQRA documentation which prevented him from suing sooner was rejected by the Court because he had not included a separate cause of action for fraud.

The Court also rejected his constitutional claims, noting that Mr. Schulz was not prevented from filing his “grievance petitions,” but also noting that nothing required the Town to listen or respond to these petitions.  The Court stated that “[r]equiring a response to every petition, especially in this digital age in which petitions can be copied and circulated with great speed and ease, could create a crushing burden on governmental agencies and officials and waylay them from performance of their duties.”

 

 

The Appellate Division recently issued a decision that explained why a massage therapist and the American Massage Therapy Association, (AMTA), a professional organization of massage therapists, lacked standing to challenge a local law enacted by the Town of Greenburgh.  At issue in Matter of American Massage Therapy Association v Town of Greenburgh  was  a  local law that  required massage therapists to obtain licenses from the Town.  The local law was inapplicable to solo practitioners.

The petitioners contended that the enactment of the local law violated the State Environmental Quality Review Act (SEQRA) and the Open Meetings Law.  They also contended that the local law was preempted by state law.

The appellate court affirmed the dismissal of the proceeding by the trial court, noting that petitioners lacked standing to challenge the local law.  First, the appellate court explained that standing requires a party to have “an interest in the claim at issue to the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request.”   More particularly, the  petitioner must establish “an injury in fact that falls within the relevant zone of interests sought to be protected by law.”   An injury in fact requires a showing that the petitioner “will actually be harmed by the challenged action, and that the injury is  more than conjectural.”   The Court also noted that an organization must demonstrate that at least one of its members  has standing in order it to have standing.

As the individual petitioner was a solo practitioner and expressly exempted from coverage by the local law, the Court found that the therapist did not have standing because any supposed injury that therapist could sustain was conjectural. As to the AMTA, the Court determined that it failed to establish standing as it did not present any evidence that the individual petitioner or any other member was covered by the local law.

Residents of the Village of East Williston have prevailed (for now) over the East Williston Union Free School District’s plan to install a six-foot tall perimeter fence at the North Side School in the Village of East Williston, Nassau County. On October 4, 2019, Judge Sharon M.J. Gianelli handed down a Decision and Order (‘Decision”) enjoining the School District from completing construction of the fence until it receives a determination from the “local zoning body.” However, actually getting that approval could be another battle for the School District because the fence exceeds the maximum height allowed under the Village’s zoning laws. Consequently, the School District will likely need an area variance—a discretionary approval—from the Village Zoning Board.

The controversy in Cuomo v. The East Williston Union Free School District (Nassau County Index No. 611616/2019) revisits the issue of whether and to what extent a school district is (or is not) exempt from local zoning regulations. As Judge Gianelli’s decision makes clear, school districts do not enjoy “blanket and absolute immunity” from zoning. Decision at p. 14. Rather, the answer to the immunity question turns on whether there is a conflict between the local zoning and any state law or regulation on the same issue. Id. If no conflict exists, local zoning regulations will likely apply.

The legal precedent Judge Gianelli cites in Cuomo also touches upon the related and important topic of how school districts are to be treated, generally, when seeking local zoning approvals, such as special permits and variances. As a general rule, schools are entitled to “[g]reater flexibility than would attach to applications [ ] made by commercial institutions.” Matter of Ravena-Coeymans-Selkirk Cent. Sch. Dist. v. Town of Bethlehem, 156 AD3d 179, 185 (3d Dept 2017) (citing Matter of Lawrence Sch. Corp.v. Lewis, 174 AD2d 42 [2d Dept 1992]). In other words, schools are entitled to “special treatment” based on a “presumption that religious [and] educational uses of property are always in furtherance of the public health, safety and morals.” Cornell Univ. v. Bagnardi, 68 NY2d 583, 589 (1986) (cited in Matter of Ravena). The finger on the scale tips even further toward favorable zoning treatment where the imposition of reasonable conditions can counteract or mitigate any adverse impacts associated with the requested approval. Id. at 596.

The foregoing rule, of course, is not absolute. As the Court of Appeals wrote in Cornell University,

The controlling consideration … must always be the over-all impact on the public’s welfare. Although the special treatment afforded schools and churches stems from their presumed beneficial effect on the community, there are many instances in which a particular educational or religious use may actually detract from the public’s health, safety, welfare or morals. In those instances, the institution may be properly denied. There is simply no conclusive presumption that any religious or educational use automatically outweighs its ill effects. The presumed beneficial effect may be rebutted with evidence of a significant impact on traffic congestion, property values, municipal services and the like.

68 NY2d at 595 (internal citations omitted).

The Third Department’s decision in Matter of Ravena provides an apt example of this doctrine in practice. There, the school district sought variances from the local zoning board of appeals to legalize an electronic sign it installed adjacent to a public road. After concluding that the district was indeed subject to the respondent town’s zoning regulations, see 156 AD3d at 182-185, the court ruled that the zoning board of appeals’ decision denying the district’s request for variances was rationally based on traffic safety concerns created by the sign. Id. at 185-85. Accordingly, the school district’s challenge of the denial was properly dismissed. Id. at 186.

A fundamental issue for the School District in Cuomo was that it never applied for a building permit for its fence in the first place. Therefore, to the extent the District might be entitled to greater flexibility of the Village’s zoning laws, it is still an open question whether the Village will approve a perimeter fence that exceeds the height restriction applied in the rest of the community.

According to the Decision, the School District has appealed Judge Gianelli’s injunction against completion of the fence to the Appellate Division. Decision at p. 5. The case is, therefore, an evolving matter with more to come.

A copy of Judge Gianelli’s Decision and Order is available on the NYS Unified Court System’s website at https://iapps.courts.state.ny.us/webcivil/FCASSearch?param=I (search: 611616/2019, click on Index Number, click on “Show efiled Documents”).

Legal pre-existing nonconforming uses (aka grandfathered uses) have a tenuous existence in New York.  Although protected by vested property rights in the Constitution, many local zoning ordinances seek to eliminate these vestigial uses with regulations that hinge on continual use.  The allowance of nonconforming uses by the courts has been grudgingly tolerated, with the ultimate goal of the zoning code to have these now prohibited uses eventually eliminated.

Recently, the Town of Smithtown Board of Zoning Appeals denial of a legal nonconforming concrete manufacturing plant was overturned by the Court,  because the use was not  “abandoned” under the Town Code. See, KPE II, LLC v Town of Smithtown Board of Zoning Appeals.

The Smithtown Town Code provides that a certificate of existing use (CEU) will not be issued where a “lawful nonconforming use…is abandoned for more than 12-months…” (emphasis added). See Town Code §377-22.

In New York, the right of a property owner to continue a nonconforming use may be lost through “abandonment” of such use. Binghamton v Gartell, 275 AD 457 [3d Dept 1949].  Importantly, “abandonment” requires intent which is a voluntary and affirmative act.  Moreover, it means something more than a mere suspension, temporary non-occupancy of a building or site, or temporary cessation of business even though such discontinuance of activities may have existed over a considerable period of time Id. 

“Abandonment” of a nonconforming uses requires the occurrence of two elements: (1) an intention to abandon or relinquish; and (2) some overt act, or some failure to act, which carries the implication that the owner neither claims nor obtains any interest in the subject matter of the abandonment Id. (emphasis added).  Thus, abandonment, or more precisely an intention to abandon, cannot be presumed but must be based on an affirmative action by the one who is abandoning.

As stated by the Court in Binghamton, time is not an essential element of abandonment.  Mere non-use of property over a period of time, when unaccompanied by any other acts indicating an intention to relinquish or abandon title thereto or ownership thereof, does not amount to an abandonment.  Id.

Furthermore, the courts have continuously held that in order to find abandonment of a non-conforming use, the intent to abandon must be coupled with the actual and complete discontinuance of the nonconforming use. Eccleston v Town of Islip Zoning Bd. Of Appeal, 40 AD3d 854 [2d Dept 2007].

In comparison, where a zoning ordinance provides for the termination of a nonconforming use after the “discontinuance” of such use over a specified period of time, there is no inquiry as to the owner’s intent to abandon. Matter of Sun Oil Co. v Town of Harrison, 57 AD 2d 627 [2d Dept 1977].  Timing is everything when it comes to termination of a nonconforming use by discontinuance.

By  definition, that rule was not applicable in KPE II LLC v Smithtown, because the Town Code operates under the “abandonment” doctrine, and thus requires intent.  Accordingly, the fact that the former owner of the KPE II, LLC site may not have operated the site robustly does not rise to the level of having the intent to abandon it.  Thus, in Smithtown the requirements for a CEU are premised on abandonment, and distinct from code provisions in other jurisdictions which rely merely on the discontinuance of the use over a period of time.

The record in KPE II, LLC clearly supported the conclusion that  there was never any intent to abandon operations at the site.  While the use as a concrete manufacturing facility may have diminished for a period of time, that did not constitute abandonment.  As a result, the use as a concrete manufacturing plant in a now residential community is still permitted.

The moral of the story: if you have a pre-existing legal nonconforming use and are considering ceasing operations to renovate or replace structures, beware of giving up your non-conforming status; and check your local zoning ordinance for abandonment or discontinuance language.

 

Town of Southampton GIS E-Portal Map

 

The Village of North Haven is a peninsula of land located on Noyac Bay in the Town of Southampton near Sag Harbor. Pursuant to Village Code §163-48(A), site plan review shall be required for “any proposed construction of a single family residence or accessory structure which is on land with a waterfront…” In November of 2012, Jeffrey Friedman submitted an application for site plan review to construct a rock revetment to alleviate erosion on the bluff on his property located at 44 On the Bluff, North Haven. On October 15, 2018, the Planning Board denied the site plan application. Mr. Friedman (hereinafter “Petitioner”) appealed, bringing an Article 78 Proceeding in New York State Supreme Court. Petitioner argued that the Planning Board should have approved its proposed rock revetment because a majority of bluff-front parcels in the Village are protected by similar structures, the property is similarly situated to another property with a rock revetment located at 4 On the Bluff which the Planning Board approved, and Petitioner responded to all of the Planning Board’s concerns and submitted substantial evidence including expert reports evidencing that the rock revetment was warranted.

In its denial, the Planning Board distinguished the rock revetment at 4 On the Bluff because the property is located on the northwest point of the Village which suffers worse storm impacts due to its location and has less protective beach elevations.  Petitioner’s property is located in the center along a “long stretch of unarmored coastal bank and the construction of a rock revetment along this section of coastline would result in erosion at the ends of the revetment which would be difficult to control.” Additionally, the Planning Board found that construction of hard structures, like revetments, reduce the resiliency of the coast and  adversely impact the shoreline resulting in increased erosion.  The Planning Board further found that nearby properties had success in preventing erosion using soft solutions such as vegetation and coir mats.

The Supreme Court, Suffolk County by Vincent J. Martorana, J.S.C., in its decision dated July 11, 2019, reviewed the standard of review in an Article 78 Proceeding as limiting the court review to whether the Planning Board decision was “arbitrary and capricious, or an abuse of discretion and further, whether or not it was rationally made based upon the facts before it.” The Court further noted the broad discretion afforded to Planning Board determinations. Since the Village of North Haven requires site plan approval for the revetment, even though its accessory to a single family residence, the Court relied on New York State Village Law §7-725-a authorizing the Planning Board to consider the impact of the proposed project on adjacent land uses (among others).  The Court’s reliance on New York State Village Law for its site plan standards in determining the authority of the Planning Board’s review in this matter is significant because the Village Code lacks specific standards for coastal structures such as revetments intended to alleviate erosion. Ultimately, the Court denied the Petition “in all respects” finding that the approval of the revetment at 4 On the Bluff was sufficiently distinguished and that “although differing expert opinions as to the necessity and possible deleterious effect of the proposed revetment were presented, ample evidence is contained in the record which supports the Board’s decision.” Petitioner is appealing the Court’s determination to the Appellate Division.

A recent Fourth Department decision upheld a determination by the Town of Westmoreland Zoning Board of Appeals (the “Westmoreland ZBA” or the “Board”) finding that a dog training business is not a “customary home occupation” within the meaning of the local zoning code.

Matter of McFadden v Town of Westmoreland Zoning Bd. presents a strikingly similar issue to that in a case from the Town of East Hampton, discussed earlier this year by Long Island Land Use and Zoning Blog Contributor Anthony S. Guardino.  In the East Hampton case, the Town of East Hampton Zoning Board of Appeals (the “East Hampton ZBA”) determined that a home-based dog-walking and pet-sitting business was a legal “home occupation” under the applicable zoning code.  In so deciding, the East Hampton ZBA found that such use met all of the regulations of the zoning code permitting home occupations, and it rejected the argument that the business would change the character of the neighborhood.

However, what is permitted in one municipality may be prohibited in another.  McFadden effectively illustrates that point.  In McFadden, the Petitioners are the owners of property in the upstate New York Town of Westmoreland (the “Town”).  They sought to lease a portion of their property for use as a dog training business.  The Westmoreland ZBA determined that such use did not meet the definition of a “home occupation” under the Town’s zoning code, and would only be permitted with a use variance.  The Westmoreland ZBA granted the use variance application subject to restrictions, such “that the business could entertain a maximum of six dogs at one time and could not provide for overnight boarding.”  The Petitioners brought an Article 78 proceeding seeking an order annulling the Board’s determination, arguing that no variance was required because the use conformed to existing code.  The Supreme Court denied the Petition, and the Petitioners appealed.

According to the Westmoreland Town Code a “home occupation” is “[a]n occupation or profession which . . . [i]s customarily carried on in a dwelling unit or in a building or other structure accessory to a dwelling unit”, subject to several other requirements and conditions (see Westmoreland Town Code § 180-2 [“Home Occupation”]).  Here, the Petitioners’ stated intention to lease their property for use as a dog training business rather than running the business themselves, undermined their argument in support of a “home occupation.”  Furthermore, the Court distinguished the Petitioners’ proposed commercial use of the property from the “ability to keep certain personal animals on their property as pets or livestock,” which is permitted.  Notably, that distinction is at odds with the position taken by the East Hampton ZBA, which effectively equated the two.

On appeal, the Fourth Department ultimately affirmed the lower court’s order upholding the Board’s determination that a dog training business was not one “customarily carried on in a dwelling unit,” and thus did not meet the applicable definition of “home occupation.”  Therefore, the Board’s requirement and issuance of the use variance and such reasonable restrictions was proper.

The different outcomes in these two cases, interpreting similar language in zoning codes, provide an example of how a particular fact can greatly impact a zoning determination.  It is important to be cognizant of all material facts when exercising property rights.

The Appellate Division, Second Department, recently issued a decision that appears to be a departure from prior precedent and is certain to create confusion with respect to when to commence an Article 78 claim challenging a final State Environmental Quality Review Act (“SEQRA”) determination.  In Stengel v Town of Poughkeepsie Planning Board, 167 AD3d 752 (2nd Dept. 2018), the court held that a challenge to a Negative Declaration under SEQRA issued by a planning board in connection with an application for site plan approval was barred by the applicable statute of limitations because it was not commenced within four months of that determination.  The Second Department’s holding is difficult to reconcile with prior precedent, including the Court of Appeals’ decision in Eadie v. Town Board of the Town of North Greenbush, 7 NY3d 306 (2006), and with its own decision in Patel v. Board of Trustees of Inc. Village of Muttontown, 115 AD3d 862 (2nd Dept. 2014).

It is axiomatic that the time within which to commence an Article 78 proceeding is four-months, unless a shorter time is provided for in the law authorizing the proceeding. See, CPLR 217(1).   However, Article 78 proceedings that challenge certain land use approvals, such as subdivisions, variances, special use permits and site plans, must be commenced within thirty days after the filing of the board’s decision in the office of the municipal clerk.  See, Town Law §§ 267-c(1), 274-a(11), 274-b(9), 282; Village Law §§ 7-712-c(1), 7-725-a(11), 7-725-b(9), 7-740; General City Law §§ 27- a(11), 27-b(9), 38, 81-c(1).  Applying these various statutes, several appellate courts have held that the time to challenge a SEQRA determination associated with a land use application is governed by the statute of limitations applicable to the underlying application. See, Matter of Guido v. Town of Ulster Town Board, 74 AD3d 1536 (3rd Dept. 2010); Matter of Southwest Ogden Neighborhood Assn. v. Town of Ogden Planning Board, 43 AD3d 1374 (4th Dept. 2007).

In Stengel, several residential neighbors were opposed to the construction of a convenience store and gasoline station that was proposed in close proximity to their homes.  After multiple public hearings on the developer’s application for site plan approval with regard to the proposed facility, the Town of Poughkeepsie Planning Board determined that the project would not have a significant adverse environmental impact and adopted a Negative Declaration under SEQRA.  Thereafter, the Town of Poughkeepsie Zoning Board of Appeals granted several variances and a special use permit, and the Planning Board granted conditional site plan approval for the project.  Under Town Law § 274-a(3), the issuance of site plan approval was subject to a 30-day statute of limitations.

The opponents then commenced an Article 78 proceeding challenging the Planning Board’s actions seeking to annul the Negative Declaration and the grant of conditional site plan approval.  The Dutchess County Supreme Court dismissed the petition.

On appeal, the Second Department held that “[t]o the extent that the petition alleges the Planning Board’s noncompliance with SEQRA, the four-month statute of limitations [CPLR 217(1)] applies.”  With respect to the timeliness of Article 78 claims, the Court stated that an action taken by an agency pursuant to SEQRA can be challenged only when such action is final, and then cited the established principle that an agency action is final when the decision-maker arrives at a definitive position on the issue that inflicts an actual, concrete injury.  According to the court, the statute of limitations began to run on February 19, 2015, with the issuance of the Negative Declaration for the project, as this constituted the Planning Board’s final action under SEQRA.  It then concluded that because the petitioners failed to challenge the Negative Declaration within four months of that date, their claims were time-barred.  This decision was apparently made without giving any consideration to the fact that the perceived injury from the Negative Declaration could have been prevented, ameliorated or rendered moot by the Planning Board’s subsequent decision on the site plan application, and without any discussion as to whether the shorter statute of limitations applicable to the site plan approval affected the timeliness of the SEQRA claims.

Although the court in Stengel cited its prior decision in Patel, it appears not to have followed that decision.  In Patel, the Second Department held that the adoption of a SEQRA Findings Statement by a Village Board of Trustees did not inflict a concrete injury because the Board had not yet issued its final determinations with respect to the underlying applications for a special use permit and site plan approval.  Citing several Court of Appeals decisions, the court explained that an agency’s action is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party.  The Patel court concluded that the issuance of the Findings Statement standing alone did not inflict injury in the absence of an actual determination on the applications for a special use permit and site plan approval.  It then dismissed the challenge on the ground that the matter was not ripe for adjudication.

While the limitations periods for Article 78 proceedings challenging a SEQRA determination once appeared to be fairly clear, the Stengel decision has raised an issue as to when the statute of limitations begins to run.  Moreover, because that case involved a challenge to a SEQRA determination associated with a site plan approval that is subject to a thirty-day statute of limitations, the court’s holding that the petitioners’ SEQRA claim is subject to CPLR 217(1)’s four-month statute of limitations conflicts with the decisions from the Appellate Divisions of the Third and Fourth Departments.

On September 5, 2019, the Court of Appeals denied the petitioners’ motion for leave to appeal to the Court of Appeals.  As a result, the current law, at least in the Second Department, is that the statute of limitations to challenge a SEQRA determination that concludes the environmental review process – i.e., a Negative Declaration or Findings Statement – is four months, which runs from the date upon which the final determination was adopted, regardless of whether the SEQRA review was associated with a land use application having a shorter statute of limitations.

Accordingly, practitioners who represent persons aggrieved by a final SEQRA determination no longer have the luxury of waiting until the underlying land use application is decided to assert a SEQRA claim.  Instead, they must now pay closer attention to a board’s SEQRA actions in connection with an application and, depending on the timing of the final SEQRA determination, may have to commence multiple Article 78 challenges in connection with a single application or risk having their SEQRA claims dismissed as time-barred.

In July, the Appellate Division, Third Department issued a decision that dealt with lake bottoms and adverse possession. In LS Marina, LLC v ACME of Saranac, LLC, the appellate court found in favor of the marina operator and granted it summary judgment on its adverse possession claim. Here are the facts and analysis that led to that decision.

In 2014, LS Marina purchased the only publicly accessible marina on Lower Saranac Lake. The marina has been in continual use since 1924. Over the ensuing years, the marina’s business expanded as did its footprint. Between 1924 and the early 1970s, the marina owner purchased several additional parcels that were adjacent to its original site and built docks and covered boat slips. In the early 1970s, that owner installed swing moorings in the bay in front of the marina, which moorings have been used each boating season since then.

At the time of LS Marina’s 2014 purchase, the marina encompassed 17 acres. LS Marina believed its purchase included 6 rental cabins, a showroom, garage, two residential homes, the covered boats slips, boat docks, moorings and the underwater property rights. However, during the pendency of its applications to expand the marina, submitted to the Town of Harrietstown Planning Board, the Town Zoning Board of Appeals, and the Adirondack Park Agency (APA), LS Marina discovered that title to the underwater lake bottom under its mooring field and 154-foot floating dock was held by the estate of Donald Moreau. In 2016, LS Marina contacted the Moreau estate representative about that underwater land.

In January 2017, ACME of Saranac, LLC (ACME) was formed by persons opposed to the expansion. One week later, ACME purchased the lake bottom from the Moreau estate for $50,000.00 via a quick claim deed. The APA informed LS Marina that a court would need to decide who held title to the lake bottom before it would continue processing the expansion application.

In June 2017, LS Marina sued, seeking a declaratory judgment that it possessed title to the underwater land. Shortly after ACME filed its answer to the complaint, LS Marina submitted a motion for summary judgment that was opposed by ACME. The trial court ruled that there were questions of fact about (1) whether LS Marina’s adverse possession claim was hostile and under claim of right; (2) whether it was actual, (3) whether it was open and notorious, (4) whether it was exclusive, and (5) whether it was continuous for the requisite time period.

The Appellate Division reversed and determined that LS Marina had made out a prima facie case of adverse possession. As to the first factor, LS Marina submitted affidavits of its predecessors-in-interest that showed the moorings were installed between the 1970s and 2005. Six moorings were installed in the early 1970s and their locations were selected to create the outer boundary perimeter of the mooring field. By 2005, a total of 20 active moorings had been installed and 16 or 17 were located in the disputed area. The moorings were rented out each boating season (April to October) and their use and access was limited to those who paid the rental fee. The boundary of the claimed area was readily discernable and visible by the mooring balls attached to each mooring anchor. The presence of moored boats made the boundary even made apparent. The affidavits also noted that the predecessor owner had never asked for or received permission to install the moorings because he believed he owned that lake bottom. Also, the submitted affidavit noted that between the 1970s and 2015, no one challenged that ownership interest. The appellate court found this use to be consistent with what owners would use such property for and was sufficiently open and notorious and continuous to put the record owner on notice of an adverse possession claim.

The appellate court rejected ACME’s claim that it raised any triable issue of fact. The Court noted that the seasonal nature of the marina business does not preclude a finding of adverse possession. The Court also found that the installation, seasonal use and maintenance of the mooring area was not sporadic. Rather, these activities persisted each and every boating season. Further, ACME’s assertion that a public right-of-way to traverse the water above the disputed lake bottom area defeated the adverse possession claim was rejected by the Court, which noted that the use of the moorings and floating dock was for the exclusive use of boaters paying the rental fee to the marina owner.

The Court also examined whether LS Marina’s attempt to purchase title to the lake bottom from the Moreau estate in 2016 defeated its adverse possession claim and determined it did not. The appellate court noted that the evidence established that title to the disputed area had passed to LS Marina’s predecessor-in-interest by adverse possession in the 1980s. Therefore, the attempted transaction in 2016 was not relevant, according to the Court.

Since the adverse possession was not based upon a written instrument, the appellate court remanded the matter back to the trial court to determine the specific description of the adversely possessed land.

Earlier this month, a challenge to the Town of Shelter Island (“Shelter Island”) short term rental law ordinance enacted in April 2017, amended May 2019 (“STRL”), came to an end – for now. Several years ago, the Shelter Island Town Board enacted its STRL to (i) impose licensing and advertising requirements for certain vacation rentals, (ii) prohibit certain vacation rentals from being rented more than once in any fourteen-day period, (iii) provide civil penalties for violations, and (iv) empower the Town Board to implement the law. Six plaintiffs in Weisenberg v. Town Bd. of Shelter Is., Docket No. 17-cv-04845 (EDNY 2017), commenced an action in federal court to annul the STRL.

The plaintiffs set forth a number of causes of action, including violations of the federal Fair Housing Act (“FHA”), N.Y. Town Law § 261, N.Y. Human Rights Law (“NYHRL”), the First, Fourth and Fourteenth Amendments to the U.S. Constitution, and Article I §§ 11 and 12 of the N.Y. Constitution. Shelter Island moved to dismiss all causes of action, except for several plaintiffs’ claims under the First Amendment. After addressing standing issues, the Court turned to the merits.

FHA Claims Dismissed

The Court dismissed the FHA claims. The FHA prohibits discrimination in renting a “dwelling” on the basis of familial status. While the statute defines “dwelling” as any building occupied as a “residence,” it does not define the latter term. The Court noted that other Circuits have utilized the plain meaning of “residence,” which encompasses a sense of home – as opposed to a temporary destination. District Courts within the Second Circuit have construed “residence” to mean a place intended for living, rather than visiting.

The Court in Weisenberg  agreed with this interpretation and held that the FHA offered plaintiffs no protection. The STRL regulates vacation-rental properties, which excludes by definition properties rented for more than two weeks at a time. The Court also noted that plaintiffs did not allege their rentals were intended for use as residences by renters. Thus, their properties are not dwellings subject to the FHA.

N.Y. Town Law § 261 Claims Dismissed

The Court dismissed plaintiffs’ claims that the STRL violates N.Y. Town Law § 261. Section 261 provides towns with the power to enact and enforce zoning regulations; it is a power to regulate the use of land and cannot be aimed at the user of land. Here, the Court found the STRL’s fourteen-day minimum rental requirement expressly regulates the use of the land; whether it drew the line at fourteen days, thirty days or 180 days, it regulated rentals based upon duration – not the identity of owners or renters. The Court also noted that the STRL’s distinction between owner-occupied and non-owner-occupied properties was similar to other restrictions on rental permits for non-resident homeowners, which New York Courts routinely uphold.

NYHRL Claims Dismissed

The Court dismissed the plaintiffs’ NYHRL claims. The NYHRL is codified within N.Y. Executive Law Section 296, which prohibits discrimination. Subsection 2-a protects publicly-assisted housing accommodations and subsection 5(a) prohibits discrimination on the basis of familial status. With respect to subsection 2-a, the plaintiffs conceded they could not prevail, and effectively sought permission to amend and replead their claim under subsection 5(a). Permission to amend a complaint, however, will be denied if the new claim is futile.

With respect to subsection 5(a), the plaintiffs argued that Shelter Island’s STRL had a disparate impact on families with children and women who comprise a class of prospective renters. However, the Court held the plaintiffs’ allegations were insufficient to state a claim. They alleged that short term renters are typically families with working parents whose jobs do not offer vacation time or enough income to take vacations of two weeks or more. While this might raise an inference of disparate impact, it does not allege that the STRL affects renters differently based on whether they have children.

Equal Protection Claims Dismissed

The Court dismissed the plaintiffs’ equal protection claim. The plaintiffs did not argue they belonged to a protected class, but instead claimed they comprised a class of one. Class-of-one claims require (i) a showing of an extremely high degree of similarity between two groups, (ii) that no rational person could regard the respective groups’ circumstances different enough to justify differential treatment on the basis of a legitimate government policy, and (iii) the similarity and differential treatment sufficiently shows the defendants did not act by mistake. Here, the plaintiffs failed to identify extremely similar persons for comparison.

Substantive Due Process Claims Dismissed

The Court dismissed the plaintiffs’ substantive due process claims. The substantive component of the Fourteenth Amendment protects against certain government actions regardless of procedural fairness. To assert such a claim in this context, a party must first establish a valid property interest within the Fourteenth Amendment’s purview. The plaintiffs argued that the STRL deprived them of their fundamental property right to rent their homes, which formed part of the “bundle of rights” of land ownership. New York zoning law, however, accounts for the concept that property owners necessarily expect their property use to be restricted from time-to-time by various measures enacted in the legitimate exercise of police powers.

The Court noted that New York landowners do not possess vested rights in zoning classifications, absent substantial expenditures in reliance upon zoning status or municipal approvals. This principle applies equally to broad-based zoning restrictions on temporary rentals. The plaintiffs failed to adequately show they possessed vested rights in the unlicensed renting of their homes for periods of less than fourteen days.

Fourth Amendment Claim Survived

The Court addressed the plaintiffs’ privacy claims brought under the Fourth Amendment and Article I § 12 of the N.Y. Constitution. The Fourth Amendment protects persons from unreasonable searches and seizures, and states that no warrant shall issue without probable cause. Their claims specifically challenged the record-keeping, search and penalty provisions of the STRL, which: (i) require the owner to maintain copies rental agreements and the rental registry on premises for Shelter Island’s examination, upon request, and preserve them for three years; and (ii) authorize Shelter Island to impose fines and suspend/revoke rental permits for failure to maintain the same. Notably, the STRL provided for a hearing prior to suspension or revocation, but it authorized the fines without a hearing or any process.

The Court noted that, while small civil fines do not rise to the severity of criminal penalties for non-compliance, the STRL raised constitutional concerns. District Courts in other Circuits have held that the automatic imposition of fines for non-compliance (without a hearing) may render a regulatory regime unconstitutional. One such Court held this type of process places the individual in the unacceptable position of having to either (i) submit to inspection or (ii) refuse inspection and hope to successfully defend the scope of inspection afterwards. Here, the Court held:

“[T]he [STRL’s] automatic fines, though certainly not as severe as the threat of arrest and criminal prosecution, could be used as a pretext for harassment. By failing to provide an opportunity for pre-compliance review before the imposition of fines, the [STRL] may violate the Fourth Amendment. But that is not to say that pre-compliance review alone would make the [STRL] constitutional.”

The Court further noted that administrative-search regimes without pre-compliance review may satisfy the Fourth Amendment where the government shows special needs that make the warrant and probable cause requirements impractical, and that the primary purpose is distinguishable from the general interest in controlling crime.

Amendments to STRL

Although the Court dismissed almost all of the plaintiffs’ claims, the survival of the Fourth Amendment claim resulted in Shelter Island amending its STRL in May 2019. In early September 2019, several months after the Court’s decision in Weisenberg, and after amendments to the STRL, the parties stipulated to discontinue the action.

As municipalities seek to regulate, license and monitor short term rentals, particularly given today’s sharing-economy and the explosion of online listing services, Weisenberg provides further insight into how challenges to these laws may fare.